Companion v. Touchstone

The majority holds that the defendant’s actions constituted a good-faith effort to perform under the real property purchase agreement as a matter of law. Because I believe that on this record good faith is an issue of fact, I dissent.

On March 31, 1993, the parties entered into a contract for the purchase of real property which contained a "mortgage contingency clause” which obligated defendant to "make good faith application for” a $135,000 mortgage without delay. Specifically, the contract provided:

"New Mortgage: By Buyer obtaining at his own cost and expense, a Conventional mortgage in that…